Ontario Court judge Howard Chisvin acted illegally when he freed a slate of accused criminals because an assistant Crown attorney was tardy from a break, Ontario’s top court has ruled.

Judge Howard Chisvin, seen leaving Newmarket Court last year, was criticized Monday by the Ontario Court of Appeal for tossing out charges after an assistant Crown attorney was a few minutes late for court.

By:Peter EdwardsStaff Reporter, Published on Mon Mar 19 2012

Ontario Court judge Howard Chisvin acted illegally and abused his authority when he freed a slate of accused criminals last summer because an assistant Crown attorney was a few minutes tardy returning from a break, Ontario’s top court has ruled.

“The trial judge’s actions were high-handed and did a real disservice to the proper administration of justice,” the Ontario Court of Appeal ruled in a decision released Monday.

The strong rebuke comes after Chisvin decided in the summer to free a dozen people awaiting prosecution or sentencing in his court in Newmarket.

Some of the people set free had already pleaded guilty to crimes and were awaiting sentencing.

“It is clear that the trial judge had no power to make the order that he purported to make,” states the decision by Justices Doherty, Lang and Epstein. “It was illegal and abuse of judicial authority. Furthermore, even if the power existed, there was no basis upon which to make the order of the facts of the case.”

The stinging high court decision overturns Chisvin’s ruling.

“The order made by the trial judge is quashed,” the ruling states. “Convictions are substituted based on the guilty pleas and the findings of guilt.”

The decision noted Chisvin did not appear to defend his actions before the Court of Appeal.

Among those set free were a man believed to be a violent paranoid schizophrenic and an alleged drunk driver. A disbarred lawyer facing fraud charges agreed on his own to reappear in court.

A week after Chisvin’s dismissal of the cases, chief prosecutor John Ayre complained about his conduct to the Ontario Judicial Council.

Marilyn King of the Ontario Judicial Council said she couldn’t comment on Chisvin’s fate following the decision.

“Currently the Ontario Judicial Council has no public hearings scheduled,” King said on Monday.

The unusual legal drama came after Chisvin became upset that assistant Crown attorney Brian McCallion wasn’t back in court at 11:46 a.m. on July 21 after a break.

• 11:47.48: One minute and 27 seconds after court resumed, the judge noted McCallion was still absent and announced: “All right, all provincial matters are dismissed for want of prosecution.”

• 11:53.44: McCallion returned but it was too late.

“Mr. McCallion, all provincial matters have been dealt with by want of prosecution,” Chisvin announced. “There was no Crown in here for some 10 minutes and you were paged and paged and paged.”

McCallion apologized and said he had been studying a prisoner’s psychiatric report. The courthouse intercom system does not work in the Crown attorney’s office.

“That might be,” the judge replied. “Court comes when court is back. You were paged. You were paged in the hallway, the Crown’s office was called, no Crown. They’re dismissed for want of prosecution.”

Previously, in October 2007, Chisvin tossed out domestic assault charges against a man who was facing four charges of assault, three threatening charges and two mischief charges.

Chisvin said it wasn’t acceptable that Davood Zarinchang wasn’t given a bail hearing until 24 days after his arrest. “The serious nature of this matter can only be remedied by the most significant remedy available — that being a stay of the charges,” he said.

Less than three months later, Zarinchang was back in court in a separate case facing two counts of attempted murder. He was found guilty and sentenced to seven years.